Parker Excavating, Inc. v. LaFarge West, Inc. et al

Filing 148

ORDER Regarding Attorney Fees and Costs (Docket Nos. 96 and 111 ), by Magistrate Judge Michael J. Watanabe on 10/29/2015. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01534-LTB-MJW
PARKER EXCAVATING, INC., a Colorado corporation,
Plaintiff,
v.
LAFARGE WEST, INC., a Delaware corporation,
MARTIN MARIETTA MATERIALS, INC., a North Carolina corporation,
FIDELITY AND DEPOSIT COMPANY OF MARYLAND, a Maryland corporation,
NICK GUERRA,
ALF RANDALL, in his individual capacity and
ROBERT SCHMIDT, in his individual capacity,
Defendants.

ORDER REGARDING
ATTORNEY FEES AND COSTS
(DOCKET NOS. 96 AND 111)

Entered by Magistrate Judge Michael J. Watanabe
This matter is before the court for consideration of attorney fees and costs based
upon this court’s Minute Order regarding Defendants MMM, Inc. and Mr. Guerra’s
Motion to Preclude Parker Excavation from Introducing Documents Contained in It’s
First Supplemental Disclosure or Testimony Related to Those Documents. See docket
nos. 96 and 111. The court has reviewed the docket nos. 111, 133, 137, 140, and 147.
In addition, the court has taken judicial notice of the court file and has considered
applicable Federal Rules of Civil Procedure and case law. The court now being fully
informed makes the following findings of fact, conclusions of law, and Order.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The court finds:

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1.

That I have jurisdiction over the subject matter and over the parties
to this lawsuit;

2.

That venue is proper in the state and District of Colorado;

3.

That each party has been given a fair and adequate opportunity to
be heard;

4.

That on July 27, 2015, this court entered the following Minute
Order, in pertinent part (docket no. 111):

It is hereby ORDERED that MMM and Mr. Guerra’s Motion
to Preclude Parker Excavating from Introducing Documents
Contained in Its First Supplemental Disclosure or Testimony
Related to Those Documents (docket no. 96) and LaFarge
West, Inc. and Fidelity and Deposit Company of Maryland’s
Joinder in MMM and Mr. Guerra’s Motion Preclude Parker
Excavating from Introducing Documents Contained in Its
First Supplemental Disclosure or Testimony Related to
Those Documents (docket no. 106) are both GRANTED, but
finding that striking Plaintiff’s expert Mr. Schwartzkopt’s
testimony and supplemental discovery if offered at trial are
not appropriate sanctions as this case is currently postured,
but other sanctions as listed below are appropriate.
It is FURTHER ORDERED that Plaintiff shall pay to
Defendants Martin Marietta Materials, Inc., and Nick Guerra
reasonable and necessary attorney fees and costs for the
subject motion (docket no. 96). Plaintiff and Defendants
Martin Marietta Materials, Inc., and Nick Guerra shall
forthwith meet and confer to see if they can agree upon the
amount of attorney fees and costs for this subject
motion(docket no. 96). If they can agree, then they shall file
with the court a Stipulated Motion outlining the amount of
attorney fees and costs agreed upon by August 14, 2015. If
Plaintiff and Defendants Martin Marietta Materials, Inc., and
Nick Guerra cannot agree upon the amount of attorney fees
and costs for the subject motion (docket no. 96), then
Defendants Martin Marietta Materials, Inc., and Nick Guerra
shall file their itemized affidavit for attorney fees and costs
for the subject motion (docket no. 96) with the court by

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August 14, 2015. Plaintiff shall file its response to the
itemized affidavit for attorney fees and costs by August 28,
2014.;
5.

That Plaintiff and Defendants MMM and Mr. Guerra were unable to
agree upon the amount of attorney fees and costs;

6.

That the benchmark for an award of attorney fees under nearly all
of the federal statutes authorizing an award of attorney fees is that
the amount of the fees awarded be “reasonable.” Pennsylvania v.
Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 562
(1986). “The lodestar figure - reasonable hours times reasonable
rate - is the mainstay of the calculation of a reasonable fee.”
Anderson v. Secretary of Health & Human Servs., 80 F.3d 1500,
1504 (10th Cir. 1996).

In this case, the court has considered those factors as outlined in
the cases of Poolaw v. City of Anadarko, Okl., 738 F.2d 364, 368
(10th Cir. 1984), overruled on other grounds, Skinner v. Total
Petroleum, Inc., 859 F.2d 1439, 1445 n.6 (10th Cir. 1988), and
Blanchard v. Bergeron, 489 U.S. 87 (1989). Taking these factors
into consideration, I find that the discounted hourly rates for
Attorneys Jonathan G. Pray- $390.00 per hour; Kathryn A. Barrett $345.00 per hour; Penny G. Lalonde - $235.00 per hour; Kendra K.
Smith - $250.00 per hour; and Cole J. Woodward - $220.00 per
hour [see docket no. 147-1] are fair and reasonable hourly rates for

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attorneys practicing law in Denver, Colorado. In addition, I find that
attorney time billed as itemized in Exhibit B (docket no. 133-2) to
prepare and prosecute the subject motion (docket no. 96) was
necessary and reasonable. I further find that the costs in the
amount of $664.15 incurred by counsel for the Defendants MMM
and Mr. Guerra is fair, reasonable, and necessary in preparing and
prosecuting the subject motion (docket no. 96). See itemized costs
in Exhibit C (docket no. 133-3). Accordingly, Plaintiff should pay to
Defendants MMM and Mr. Guerra the sum of $10,215.00 in
reasonable and necessary attorney fees and costs in the amount of
$664.15.
ORDER
WHEREFORE, based upon these findings of fact and conclusions of law this
court ORDERS:
1.

That Plaintiff Parker Excavating, Inc. shall pay to Defendants MMM,
Inc. and Nick Guerra reasonable and necessary Attorneys Fees in
the amount of $10,215.00 and costs in the amount of $664.15 by
November 30, 2015.

2.

That this court’s Minute Order [dated July 27, 2015] regarding
Defendants MMM and Mr. Guerra’s Motion to Preclude Parker
Excavation from Introducing Documents Contained in It’s First
Supplemental Disclosure or Testimony Related to Those
Documents (docket no. 111) is amended consistent with this Order.

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Done this 29th day of October 2015.
BY THE COURT

s/Michael J. Watanabe
MICHAEL J. WATANABE
U.S. MAGISTRATE JUDGE